Monday, 14 November 2016

According to some eternal optimists, we’re seeing the sensible side of Donald Trump now.

In the campaign he was boastful, brash and bigoted –
showboating to the crowds. Now, supposedly, we see his adorable, modest and vulnerable
face, in which he compromises on his extremist pledges and is guided by wise
counsel.

I’m reminded of another larger-than-life New York character
– Ernie, the piano player in Salinger’s The
Catcher in the Rye. With the
spotlight on him and a mirror reflecting his face back to the crowd, he revels
in showing off. But after the applause, he gives an implausibly humble bow.

As the narrator of the story, Holden Caulfield, remarks: ‘It
was very phoney.’

Who can tell exactly what the new President will do and what
he won’t? He is capable of believing one thing on a Monday, reversing
his opinion on a Tuesday and deciding on Wednesday that he had it right at the
start of the week.

We cannot assume anything about him at all. He is
unpredictable, irrational and self-obsessed, so anything is possible.
Personally, I would prepare for the worst and not bank on any pleasant
surprises turning up.

Some of the things he promised may come to pass. Some may
not. I fear that the bad ideas – deportations of immigrants, a love-in with
Putin – are the ones most likely to prevail. The other ones, such as restoring
manufacturing jobs to the rust belt, are sadly a pipedream.

But with Trump, the issue isn’t so much what he promised
prior to the election. It’s what he’ll say and do on a day-to-day basis when
he’s in the Oval Office.

What will his response be to a terrorist attack? How will he
approach a diplomatic or political crisis with China? Which minority group will
he blame when the US economy threatens to tank?

Democracy is a curious system of government. It is, on the
one hand, much more flexible and durable than many forms of authoritarian leadership
or dictatorship. At the same time, however, it is more precarious.

Part of the glue that holds democracy together is the idea
that those competing in elections accept the basic tenets of the democratic
system. Trump indicated during the campaign that should he lose, he might
challenge the result. This quite rightly provoked outrage from Democrats. But
it also created a fascinating double bind.

Now, when Trump is elected – without a mandate in terms of
popular vote – we are obliged to say he is legitimate. I don’t blame Obama and
Clinton for trying to be gracious and telling us that we have to give the guy a
chance. They had no alternative. But this, of course, is exactly the way in
which democracy begins to unravel.

You don’t need to go back to the dark days of the 1930s to
know what happens when you elect people who don’t accept democracy. Look at
Russia under Trump’s bestie Vladimir Putin. There is a notional democratic
process in Moscow, but not one which stands a moment’s scrutiny. Journalism is constantly
under attack, opposition leaders are targeted and a cult of personality exists
around the president.

If you want a sense of where Trump’s America will go, think
of any country around the world which has the superficial trappings of
democracy, but none of the substance. Places where parliaments rubber-stamp the
edicts of strongmen and where opposition becomes more and more muted. Tinpot
republics where one man is seem to embody the popular will and anyone who
opposes him is assumed to oppose the people.

One thing is for certain. The only time in which democratic
institutions will have the power to intervene and shape events is right
now. Congress needs to oppose Trump at
every turn and assert its independence. But both the Senate and the House are
now in the hands of the GOP. And the Republican lawmakers find, to their
horror, that they owe something to Trump.

The very time they need to speak out will be the time they
are least likely to. Why? Because the message will be that Trump was elected,
that we need to give him a chance and rescue something of the mainstream
Republican agenda. And, critically, some of this message will be backed
initially by many senior Democrats who believe in the peaceful transition and
the integrity of the office of President.

A new landscape starts to emerge or, as Americans would
describe it, a new ‘normalcy’. Trump is
President and anyone who denounces his actions doesn’t understand how the world
has changed. In the UK, we live in the post-Brexit world. God forbid that you might cling to the old
ways of thinking. Interested in the single market and free movement of labour?
So 2015.

Perhaps the most dangerous thing about the new normal is
that it is highly contagious. Trump built his campaign partly on the back of
Brexit. He said that the little guy can shout and rage at the ‘establishment’
and the ‘elite’ by voting for him. This sends a message to fantasists and
populists in other fragile democracies. It resonates in Austria, in Hungary, in
Germany and perhaps most alarmingly in France.

Could Marine Le Pen really win the French presidency? Before
2016, every political bone in my body would have said no. The French system is
locked down in a way which makes it virtually impossible for an extremist to
triumph. She could win the first round, but would be defeated when socialists
reluctantly endorsed Sarkozy or Juppe in a second-round run-off.

Now, all bets are off.

What if Le Pen does much better in the first round than we
fear even now? What if socialists, out of political purity, refuse to back her
right-wing opponent in round two? There
are Bernie Sanders supporters online who openly say that Trump’s election is a
good thing. In at least one state, the write-in vote for the socialist
old-timer from Vermont was larger than the margin by which Hillary Clinton
lost.

So the left is in a state of shock and looks around for
explanations. They favour the ones that fit with their existing ideological
standpoint. Sanders and Corbyn blame globalisation and the neglect of working-class
communities. They believe erroneously that if they peddle many of the same
fantasies as right-wing populists (return of manufacturing jobs, increased
protectionism, retreat from global financial and political institutions), they
will ride some kind of populist wave.

But of course, the appeal of the right-wingers to
working-class communities is only one part of a much bigger story. There are
plenty of middle-class people who voted for Trump and Brexit as well. And the left has to grapple with a
whole range of other issues too, which are far less comfortable.

Immigration and racism are involved. Sexism is involved. The
FBI is involved. Russia is involved.
Guns and abortion and single-sex marriage are all involved.

Clinton might have won if the third-party candidates had
withdrawn. She might have won if idiotic Bernie supporters had backed her
rather than abstaining or writing his name on the ballot. She might have won
if...

But as we know, she didn’t win.

Welcome to the world of the new normal. Best viewed from the 66th floor of
a 58-storey apartment block.

Saturday, 5 November 2016

The world has generally gone fairly topsy-turvy over the
past year or two. And now, in the latest bizarre twist, the UK’s left-leaning
activists and liberal intellectuals have suddenly become the biggest
cheerleaders for the British judiciary.

Yes, these paragons of the legal establishment –
predominantly white, aged, privately educated, Oxbridge alumni – are now apparently
the champions of the people who should be cheered from the rooftops.

Social media is awash with people defending the Brexit
judges and despairing at anyone who doesn’t ‘understand’ their High Court
judgment earlier in the week. How can we be so ignorant? Aren’t British people familiar with their own
constitution?

Of course, I found the various tabloid headlines lurid,
objectionable and disturbing. The judges were merely doing their job and don’t deserve
to be pilloried or exposed to abuse. I was even more disturbed by the rape and
death threats received by Gina Miller, the figurehead of the group bringing the
Article 50 case. None of this should be
happening and shows a complete debasement of our political life.

But I’m afraid there are a few home truths that we need
address.

Brace yourself.

It may come as a shock, but I’m afraid there ain’t no such
thing as the British constitution. Not
one which someone has bothered to write down anyway. (We share this rare
distinction with a couple of countries in the Commonwealth and with Israel. But
in most places around the world, from Argentina to Zaire, people have got their
collective backsides into gear and actually set pen to paper.)

Of course, we claim to have a constitution which is ‘unwritten’
and when you talk to some lawyers and politicians about this, you almost feel they
smugly believe this to be a superior arrangement. It means that what passes for our constitution is actually
a series of conventions and precedents.

This kind of gentlemen’s agreement is great in the good
times, but becomes rather exposed when the country is divided in two and you’ve
decided to extract yourself from the world’s largest trading bloc.

Written constitutions are constantly debated and interpreted
and amended around the world. And, believe it or not, unwritten ones are too.
It’s just that we don’t have the luxury of those pesky written-down clauses. I
would argue that the constitutional settlement in the UK is in constant flux –
most notably in recent decades with the devolution of power to Scotland, Wales,
Northern Ireland and London. It is permanent work in progress.

In this Brexit case, the High Court was effectively trying
to decide on the respective power of the executive and the legislature in
relation to the most significant political event of my lifetime. This is way
too important an issue to be decided at this level, which is why the justices
granted leave to appeal their decision directly to the Supreme Court, skipping
the usual route of the Court of Appeal. (Gina Miller’s plea that the case
should go no further is completely indefensible. It’s like saying we’d be happy
to play the FA Cup Final at Fratton Park.)

When the Supreme Court does deliberate, it will bring
together every member of the panel. This is unprecedented, but reflects the
seriousness of what’s at stake.

Which brings me to my second and perhaps more controversial
point. I suspect the Supreme Court will take a more political view of the
issue. When I have made this point online, I have been decried as some kind of
fool. Judges interfering in politics?
Impossible! Judges merely interpret the law.

What’s very odd is that 30 years ago, the political
interference of the judiciary was a huge issue in liberal and left-wing
circles. J A G Griffith’s Politics of the
Judiciary was compulsory reading in Sixth Forms and universities. And some
of you may remember Tony Benn’s five questions to ask of the powerful:

What power have you
got?

Where did you get it
from?

In whose interests do
you exercise it?

To whom are you
accountable?

And how can we get rid
of you?

The left always believed that the judges came from a
privileged and elite background and exercised power in the interests of the
establishment. In the UK, it is clear the judiciary is not accountable to the
public and cannot be removed by any democratic levers.

The 1980s produced a number of judgments which many liberals
and left-wingers found objectionable. Some related to industrial disputes,
although the most notorious was probably Lord Denning’s ruling against Ken
Livingstone’s Fares Fair policy at the Greater London Council, subsequently
upheld by the Law Lords.

The argument back then was not always about judges pursuing overt
political agendas. It was a recognition that they are unelected and tend to
come from very particular social backgrounds. This means that we should always
be prepared to ask questions.

So although judges should never be denounced in vitriolic
language as ‘enemies of the people’, any free society should allow people to
question and criticise their judgments. And although no one should be thought
less qualified to deliberate on a case because they are ‘an openly gay
ex-Olympic fencer', it might be perfectly legitimate to consider their wider
social, educational and career backgrounds when interpreting their decisions.

What’s interesting is that in the United States, there is an
explicit acknowledgement that judges are political and will be asked to take
political decisions. At lower levels, members of the judiciary will often be
elected. And when it comes to the Supreme Court, each appointment is weighed in
terms of political significance. As a vacancy becomes free, the incumbent
President will nominate someone in his or her image, but the nominee is
scrutinised at hearings by the Senate.

This, in my view, is a much healthier system than exists in
the UK, where we ask judges to make political decisions but pretend that they
don’t.

So, back to the Supreme Court next month.

You’d think with all the glib memes circulating, there was
no need for qualified judges, as everything could be decided on Twitter. In
actual fact, it’s a very complex case.

Yes, there is the issue of Parliamentary sovereignty and the
lack of any explicit authority for the government to use its Royal Prerogative
to invoke Article 50. But there is also the question of whether Article 50 is
irrevocable or not. And behind that, there is a much bigger question: how far
should the unelected judiciary intervene in this debate between the elected
politicians representing the executive and the legislature?

And that’s the political conundrum.

If the Supreme Court upholds the decision of the High Court,
it will be accused – however erroneously – of delaying or blocking Brexit, or
giving licence to those who seek to do this. The referendum in June was not
legally binding, but it was presented by both sides as a momentous decision
rather than a straw poll. Any reasonable person, having listened to the debate,
would believe they were making an important choice which was going to be
enacted.

The Supreme Court might end up precipitating the collapse of
the May government or the calling of a new general election. I would personally be surprised if they felt
the long-term credibility and impartiality of the judiciary was best served in
this way. So my hunch is that they might
pull back from the brink. Politics, you see.